The US Court of Appeals for the Seventh Circuit affirmed a summary judgment ruling that the plaintiff did not offer sufficient proof that the defendant’s work was substantially similar to the home designs in which it claimed copyright or that the defendant had access to its designs. Design Basics, LLC v. Lexington Homes, Inc., Case No. 16-3817 (7th Cir., June 6, 2017) (Hamilton, J).

Design Basics, which claims copyrights to about 2,700 home designs, sued Lexington Homes, claiming that it infringed four of Design Basics’ home designs and built about 50 homes using those designs. After the district court granted summary judgment to Lexington, finding no evidence that it had access to Design Basics’ home designs, Design Basics appealed.

To succeed on a claim for copyright infringement, a plaintiff must prove (1) ownership of a valid copyright and (2) that the defendant copied elements of the copyright work that are original. As part of the second prong of the test, a plaintiff must prove that the protected copyrighted elements and alleged infringing works are substantially similar. In terms of the substantial similarity test, courts consider “whether the accused work is so similar to the plaintiff’s work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff’s protectable expression by taking material of substance and value.” The substantial similarity between the works must also relate to the original elements of the copyrighted work. Therefore, a court must separate the copyrighted work’s original, protected expressive elements from those aspects that are not copyrightable.

The Seventh Circuit affirmed the summary judgment determination that Design Basics did not offer evidence from which a reasonable jury could conclude that Lexington’s home designs were substantially similar to the protectable expressions in Design Basics’ design plans, nor that they were strikingly similar. Rather, the Court found that “to whatever extent the parties’ plans resemble one another, they likewise resemble countless other home designs in a crowded market.”

The Seventh Circuit further concluded that Design Basics did not offer evidence that Lexington or its agents had a reasonable possibility of access to the design plans at issue, noting:

[W]e do not draw here a bright line as to the quantity or quality of evidence, in addition to a web presence, a plaintiff must offer to raise a genuine issue of fact concerning access. We decide only that the existence of the plaintiff's copyrighted materials on the Internet, even on a public and “user-friendly” site, cannot by itself justify an inference that the defendant accessed those materials. It follows that a plaintiff who cannot show striking similarity and whose evidence of access reduces to the mere existence of a website cannot survive summary judgment on a copyright infringement claim.